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Should the Palestinians Seek Justice NOW at the International Criminal Court?

[Prefatory Note: This post is a modified version of an opinion piece published by Middle East Eye on February 20, 2017. It calls particular attention to the punitive treatment of recourse to international law tribunals to address perceived grievances that is meant to discourage Palestinians from seeking relief at the International Criminal Court. On one level this form of lawfare underscores the weakness and vulnerability of Israel when the conflict is shifted from the battlefield to the courtroom. On another level it is meant to deny the Palestinian people, and their representatives, all legitimate amd moderate options by which to pursue their claims and address their grievances. It signals that the ‘enforcers’ of world order repudiate their own accountability with regard to the rule of law, while purporting to hold others to account, for instance, by criminalizing all forms of violent resistance to prolonged and abusive occupation as ‘terrorism.’]

Weakening the Two-State Consensus

There is little doubt that the mid-February Netanyahu/Trump love fest at the White House further dampened already dim Palestinian hopes for a sustainable peace based on a political compromise. The biggest blow was Trump’s casual abandonment of the two-state solution coupled with an endorsement of a one-state outcome provided the parties agree to such an outcome, which as so expressed is a result almost impossible to suppose ever happening in the real world. Israel would never agree to a secular one-state that effectively abandons the Zionist insistence on a Jewish state with deep historical roots and biblical validation. The Palestinians would never agree to live in such a Jewish one-state that essentially abandoned their long struggle to achieve national self-determination, thereby gaining liberation from the last major remnant of the colonial era.

With geopolitical bravado suitable for the real estate magnate that he remains, despite the presidential trappings of his formal role, Trump also vaguely promised to negotiate a grand deal for the region that evidently reached beyond the contested territory of Palestine so long locked in conflict, and thus encompassed neighboring countries or possibly the whole region. It is easy to speculate that such murmurings by Trump were not welcomed in either Jordan or Egypt, long favored by rightest Israelis as dumping grounds for Palestinians in the West Bank and Gaza. Such added ‘political space’ is attractive from an Israeli perspective, both to ensure that Israel maintains a comfortable Jewish majority if the one-state solution were ever forcibly implemented by Israel. At the same time the prospect of population transfer would allow Israel to achieve a higher degree of racial purity, a feature of the dominant Zionist imaginary long before Israel became internationally recognized as a state.

An inflammatory part of this new political environment is the accelerated expansion of the existing network of unlawful Israeli settlements located in occupied Palestine. Although near unanimously condemned in Security Council Resolution 2334 last December, Israel responded by defiantly announcing approval of thousands more settlement units, endorsing plans for an entirely new settlement, and by way of a Knesset initiative provocatively legalized settlement ‘outposts,’ 50 of which are distributed throughout the West Bank in direct violation of even Israeli law. It is possible that the Israeli Supreme Court will heed anticipated judicial challenges to this latest move, and eventually void this Knesset law, but even if this happens, the passage of such a law sends a clear message of iron resolve by the political forces currently steering Israeli policy never to permit the establishment of a viable Palestinian state.

In these circumstances, it becomes incumbent upon the Palestinian Authority to show the world that it is still alive, and it currently has few ways of doing this. Given these realities it would seem a no brainer for the PA to light up the skies of public awareness of the Palestinian plight by vigorously demanding justice at the International Criminal Court (ICC). After all there is a wide consensus on the global stage that all the settlements, and not just the outposts, are in violation of Article 49(6) of the Fourth Geneva Convention. These settlements have for decades served as a major obstacle in the search for a satisfactory diplomatic solution of the conflict. Of course, it would be naïve to expect Israel to comply with an adverse judgment of the ICC, or to participate in such a proceeding in ways other than by challenging the competence of the tribunal, but a favorable outcome would still be of great value for the Palestinians. It would cast Israel in an unfavorable light in relation to the UN, international law, and world public opinion, and undoubtedly encourage the further development of the already robust global solidarity movement.

Yet, despite these circumstances that makes the ICC seem such an attractive option, a PA decision to take this path is far from obvious. The former Foreign Minister of the PA and member of Fatah’s Central Committee, Nasser al-Kidwa, effectively dismissed the ICC option by calling it ‘complicated’ without any further explanation, leaving the impression that the costs of taking such a step were too high. However, the issue is not yet settled as mixed signals are emanating from Palestinian leadership circles. For instance, the PLO Secretary General, Saeb Erekat, in contrast to Kidwa, minced no words in his insistence that the ICC investigate “the colonial settlement regime.”

It seems useful to speculate on why there should be this ambivalence among Palestinian leaders. After all, international law, international public opinion, and even most European governments are all supportive of Palestinian claims with regard to the settlements. Israel remains more defiant than ever, and shows every sign of further expansion, possibly with an eye toward soon unilaterally declaring an end to the conflict, a move that Washington might find temporarily awkward, but in the end, acceptable. At the core of this debate about recourse to the ICC is the tricky question as to whether deference to the muscular vagaries of geopolitics serves Palestinian interests at this time.

Recourse to the ICC: Pros and Cons

The argument favoring recourse to the ICC is almost too obvious to put forward. It would back Israel into a corner. The Netanyahu government is certain to react with anger and concrete expressions of hostility to any such move by the PA. Such a reaction would be widely seen as a convincing confirmation of Israel’s vulnerability to any impartial test as to whether its settlement policies meet the minimum requirements of international law. And most importantly for the PA it would demonstrate that despite recent political disappointments the Ramallah leadership was prepared to embark upon a controversial course of action that displayed political courage, including a willingness to endure expected vindictive acts of retaliation. Recourse to the ICC would play well with the Palestinian people, especially those living under occupation. They experience daily tensions with violent settler groups and see no future for themselves absent confrontation with Israel. If the PA chooses such a course, it would help restore support for the flagging claims of the PA to serve as the sole legitimate representative of the Palestinian people at the global level. This is turn could lead finally to durable arrangements of unity as between Hamas and Fatah, which would raise confidence levels that the Palestinians were prepared for this latest, difficult stage of their national movement.

The arguments against going to the ICC are somewhat more elusive. There is no doubt that Palestine, recognized by the UN as a state now enjoys the jurisdictional qualifications to participate in ICC proceedings. What is less clear is whether the ICC would be responsive, and able to circumvent technical obstacles, such as finding suitable Israeli defendants. During its 15 years of operation the ICC has been very reluctant to be pro-active except in Africa, and even there it has been recently stung by an intense pushback by African governments and the African Union. The ICC has been reluctant to stir up political opposition in the West, which would certainly occur as soon as the ICC launched a full investigation of Palestinian criminal grievances against Israel.

There is also the reverse problem of ICC action that might disappoint the PA. To appear balanced, the ICC would probably extend its investigation to include allegations relating to indiscriminate rocket fire from Gaza. It could then decide that a strong case of probable criminal responsibility attributable to Hamas existed, while allegations against Israel failed because of the inability to establish criminal intent. Although a setback for the PA, such an outcome at the ICC would be internationally criticized as contrary to reasonable interpretations of international law, and be widely regarded as a reflection of political pressures exerted by Washington.

Likely, the PA is most inhibited by the ‘lawfare’ campaign being waged by Israel and the United States. Already during the Obama presidency there was Congressional legislation terminating financial assistance to the PA in the event of any recourse to the ICC. Since Trump these warnings have escalated, including the total suspension of financial aid, the closing of the PLO offices in Washington, and threats to put the PLO and Fatah back on the US list of terrorist organizations. It is evident that the PA is taking these unseemly threats seriously.

There are also PA fears that any ICC initiative would induce Israel to move more quickly toward closure with respect to the underlying conflict, annexing most or all of the West Bank. Such a reaction would both be in keeping with Israel’s tendency to respond disproportionately to any formal action directed at the legality of its policies and practices. Israel is particularly sensitive about war crimes charges, and vows extraordinary measures should any of its citizens be so charged. Now that Netanyahu can count on unconditional support in the White House and the US Congress it would not be surprising to see him use the occasion of an ICC initiative to proclaim Israeli sovereignty over the whole of historic Palestine.

Conclusion

In light of the above, it seems almost certain that the PA will not act take advantage of the ICC option any time soon. The PA is likely to adopt a posture of neither/nor, that is, neither explicitly ruling out recourse to the ICC, nor activating the option. This reflects the reality that the PA is caught between the rock of US/Israel bullying tactics and the hard place of an increasingly restive Palestinian population, being acutely reminded of its ordeal by the grim realization that 2017 is the 50th anniversary of the Israeli occupation.

The United States posture, although somewhat more belligerently pro-Israel as a result of the Trump presidency, is really nothing new except in style. Even during the Obama presidency the US opposed every attempt by the PA to rely on international law or the UN to advance its national struggle. Instead of welcoming the use of law rather than weapons, the US Government castigated efforts of Palestine to gain membership in the UN System or to seek even symbolic relief for its grievances in international venues. This turn against international law, as well as against the UN, is clearly a signature issue for the Trump presidency, and not just in relation to Palestine, and this is not good news for the world.

Responses to four questions posed by Rodrigo Craveiro, a journalist from the Brazilian newspaper Correio Braziliense

1- How do you see the decision of the Knesset taken last night about legalizing settlement outposts and what are the likely consequences of this legislative initiative?

It is one more act of defiance by Israel that is both a repudiation of international law relating to settlements in Occupied Palestine and of the UNSC, which in December passed Resolution 2334 condemning settlement expansion and reaffirming their illegality. Whether Israel experiences adverse consequences depends especially on the reaction of European governments and of civil society. Israel expects that Trump’s presidency will insulate the country from any show of real pressure at the UN or via sanctions, but there are mixed signals as usual emanating from the White House. The Knesset’s provocative move of legalizing the 50 or so settlement ‘outposts’ that were previously illegal even under Israeli law, an internationally controversial move that may in due course be nullified by Israel’s judiciary. Actually, the move was not so radical as the Israel state had long accommodated the outposts by providing them with subsidies and security, and overlooking their formally unlawful status in domestic law.

2– Do you believe Israel is interested in annexing West Bank? Why?

Israel’s leadership and public seems split on this. The most vocal leaders of the settler movement and the extreme right in Israel favor annexation, and always have and always will. Netanyahu and the Israeli center right prefer to keep their true intentions ambiguous, that is, proceeding with de facto annexation while continuing to maintain an international diplomatic posture that claims a willingness to negotiate with the Palestinian Authority without preconditions implying an eventual willingness to accept at some point the establishment of a viable Palestinian state. Some in Israel favor annexation for historical/biblical reasons associated with their convictions that Israel should embrace the whole of ancient Palestine, with the West Bank known as Samaria and Judea. Other Israelis favor annexation as the fulfillment of the project of secular Zionism, and also contend that a greater Israel will enhance the security of the state of Israel. The President of Israel, Reuven Rivlin, has long favored annexation of the entire West Bank to complete the Zionist project, and couples this forthright rejection of a two-state solution with a controversial commitment to treat Palestinians as fully equal citizens in such an expanded Jewish state, accepting even the possibility that Palestinians become at some point a demographic majority, and manage to achieve an electoral mandate for a Palestinian political party to govern the country.

3– In what ways do you believe Netanyahu is taking advantage of the fact that Trump is in the presidency of US for taking polemical measures?

It would appear that Netanyahu is proceeding on the basis that whatever Israel chooses to do, even if in the Obama years it might have produced disapproval, will in the Trump presidency be fully supported. Netanyahu may be testing how far he can go with such an approach without generating a costly diplomatic backlash by Arab neighbors, a new cycle of violent resistance by Palestinians, and an escalation of global civil society pressures taking the form of a more robust Boycott, Divestment, and Sanctions Campaign. In my view, Netanyahu is playing a dangerous game, and for the sake of Israeli expansionism and one-statism, maybe overstepping prudent limits. Perhaps, the biggest and most dangerous test of all is Netanyahu apparent desire to heighten tensions with Iran, leading possibly to the repudiation of P5 + 1 Nuclear Agreement negotiated by Obama presidency in 2014 and to a military confrontation. Trump called for the repudiation of the agreement during his campaign, but has been urged not to carry out the pledge by many, including senior former Israeli security experts and government officials. It will be of the greatest importance that this agreement with Iran maintained, and not undermined by any ratcheting up sanctions and an increased confrontational diplomacy.

4– Do you believe Trump could be seen as a source of influence in favor of Israel, due to his adherence to conservative positions that are the same as those favored by Netanyahu?

There appears to be a natural affinity between these two leaders based both on their autocratic approach toward governance and reactionary substantive positions. I would not call their ideological outlook genuinely ‘conservative’ as it seeks to create ruptures with prior political, social, and cultural values. Although both leaders are demagogues and ideologues, they also act in opportunistic and impetuous ways. Both are swayed by considerations of expediency, and so their apparent marriage of convenience to one another could easily be broken. Perhaps, after their meeting this week, it will be clearer as to whether their personal chemistry is sufficiently positive to sustain their relationship over time. For the sake of peace and justice, I would hope that tension rather than harmony develops as they come to know each other better. It is certainly time for the US Government to realize how much damage its ‘special relationships’ with Israel and Saudi Arabia have contributed to the tensions and turmoil that currently beset the region.

Richard Falk

Richard Falk is an international law and international relations scholar who taught at Princeton University for forty years. Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies and since 2005 chaired the Board of the Nuclear Age Peace Foundation. He initiated this blog partly in celebration of his 80th birthday.